Save groundwater or ground democracy?

A Kerala panchayat has recently appealed the state High Court's ruling which said that the panchayat's rejection
of Coca Cola's application for renewal of license to extract groundwater was untenable in law.
Videh Upadhyay
drafts some of questions that the Supreme Court may need to settle.

The relentless battle of a Kerala panchayat to stop a soft drink major from drawing huge quantity of local groundwater for its bottling plant recently reached the Supreme Court with the court issuing notice to Coca Cola on the panchayat's plea on 6 May. The panchayat appealed a decision of the Kerala High Court issued a month before. The High Court had ruled that the panchayat's rejection of Coca Cola's application for renewal of license to extract groundwater was untenable in law. While basing its verdict squarely on scientific data provided by the court appointed multi-agency expert committee, the court concluded that the findings of the committee that the factory could safely be permitted to withdraw 5 lakh liters of water a day appears 'fair, authentic, mature and therefore acceptable'.
(10 lakh = 1 million)

Notably, in pronouncing the verdict, the Division Bench overturned a single bench ruling of the same high court on the case fourteen months earlier (16 Dec 2003). The judge then had held that the government, holding public property of groundwater in trust, had no right to allow a private party to overexploit the resources to the detriment of the people. However, to me, the big pointer from the final verdict of the High Court that has been challenged now in the Supreme Court is not on the substance of groundwater jurisprudence, but on the strategy of use of law and how it interplays with democracy at the local level.

First, the case in the High Court was de facto decided by the court appointed expert committee! Notwithstanding the committee's 'scientific assessment'  and appreciating that science is also about values and not facts alone  the decisive turning point in the case has to be the constitution of this committee. The fact that court, while talking of the fairness of the committees' report also noted that the constitution of the committee or its recommendation was never challenged by the panchayat is not without significance. It throws an implicit lesson to all those invoking the court as to when and at what point to intervene hard in a pending case.
(See detailed report: Rain or no rain, water for Coke.)

Still, it is arguable that when expert committees are otherwise ultimately having a decisive say in environmental litigation in India, why should this be an issue in the Coke case alone? This point is ordinarily taken, except that the case before the Kerala High Court was as much about groundwater as it was about what decentralization means. It is as much about popular aspirations as it is about ecology. Although the court in its verdict hinted that the issue before it is important "especially in the wake of decentralization of powers", it did not delve further on what this could imply in terms of its operative decision.

Even as the battle has moved to the Supreme Court, there needs to be a sobering realization of the limits of law, which would be easier for the panchayat since the local body already received an adverse verdict. Perhaps the High Court decision suggests (again) that while one goes full throttle on the battles in the peoples' arena, cautious optimism is the best state of mind while bringing the battle into the legal arena. Another big lesson from the verdict is that the value systems of lawyers and judges in the higher courts are in effect supplanting effective decision making of an elected body of the village people.

See more closely the words in the 7 April judgement to appreciate the point better: The industry has the right to receive water "without inconveniencing others"; "We hold that ordinarily a person has the right to draw water in reasonable limits"; "There is a need to do balancing of ecological rhythm with aspirations of the people in the locality"; and finally, the findings of the single judge "might not be practical". In the era of a categorical Constitutional commitment to genuine local self governance, the moot question is who should be deciding on what is convenient in villages, on what is reasonable, what popular aspirations are, and what is practical?

Finally, the Kerala High Court judgement came close on the heels of another panchayat's resolution in a different state -- Rajasthan -- last month against another water extracting cola bottling plant. Significantly, the decision there got approval of a specially convened Jan Adalat (People's Court) also comprising senior lawyers and a retired justice. Is there a lesson in the two diametrically opposite decisions of a peoples' court in Rajasthan as against the high court in Kerala? What answer can jurisprudence provide to Constitutional courts' judgement that goes against popular aspirations? Are the cases in Kerala and Rajasthan pointers to a dominant legal culture where 'non-state legal formations' just do not matter?

Further, if higher courts overrule an elected panchayat's decision, does it suggest that democratic decisions are
per se not just? The Coke case has too many questions begging for answers and it is critical for the Supreme Court to know that.

Videh Upadhyay01 July 2005

Videh Upadhyay is a lawyer in the Supreme Court Of India. He writes extensively on the legal contexts of development and public interest issues and is a co-founder of Enviro Legal Defence Firm (ELDF). He was
formerly Visiting Law Fellow in JNU and at UC Berkeley.

India Together offers an excellent forum for people from diverse fields of expertise to present their views, share their experiences and raise questions about where our country and society are headed in the future.

Amitabha Basu

Retired Scientist

National Physical

Laboratory

India Together reader

India Together offers an excellent forum for people from diverse fields of expertise to present their views, share their experiences and raise questions about where our country and society are headed in the future.

I urge all democratic-minded individuals to road, contribute to and publicise the e-newsletters from India Together. All power and success to India Together staff for their excellent and vital contribution to our society!